The Disability Law & Policy e-Newsletter
An electronic publication of
The Law, Health Policy & Disability Center at the
University of Iowa College of Lawhttp://disability.law.uiowa.edu/
and
The Burton Blatt Institute at Syracuse Universityhttp://bbi.syr.edu

September 1, 2010
Volume 7, Issue 8

The Disability Law & Policy Newsletter
is a bi-weekly publication that aims to inform disability advocates,
scholars, and service providers of the most current issues in disability
law, policy, research, best practices, and breaking news.

Several large airports in the United States have created "pet relief
areas" in 2010. The recent frequent creation of dog bathrooms is
part of an effort to comply with a 2009 federal regulation that requires
airlines and airports to collaborate in installing facilities for air
travelers that have service animals. The regulation, which was passed by the
Department of Transportation's delegated authority under the Air Carrier Access
Act, also requires these areas to be equipped with gravel or sand and
have adequate drainage, to be cleaned regularly, and to be odor free. So far,
Atlanta, Chicago O'Hare, Los Angeles, Phoenix, San Francisco, and Washington
Dulles have instituted bathrooms for service animals. Most of the bathrooms
have been built outside of the airport, but within walking distance from the
terminal. These efforts are welcome news for the approximately 2 million pets
and service animals that travel annually in the United States. Nonetheless,
American Federation for the Blind employee Neva Fairchild says that future
bathrooms should be constructed within the airport terminal so that service
animal owners can avoid going through security checkpoints more than once.

The United States Department of Justice announced on July 23, 2010, that
it will publish four new proposals (in the form of advanced notice rulemaking)
under the Americans with Disabilities Act (ADA) for public comment.
The four proposals, all increasing accessibility of products and services
for persons with disabilities, were published in the Federal Register
on July 26, 2010, and are open for 180 days. The first proposal asks the public
to comment on accessible website standards for ADA covered entities. The second
proposal relates to so-called "Next Generation 9-1-1," which would require
9-1-1 call centers to accept emergency text messages, video calls, and
Internet requests in addition to traditional 9-1-1 calls. A third proposal
asks the public questions about movie theaters providing closed captioning
and video description services at movies. Finally, a fourth proposal
asks the public to comment on accessible furniture and equipment for
persons with disabilities, including for example ATMs, medical examination
equipment, and scales. To view the proposals and questions or leave a
comment, please go to http://www.ada.gov/anprm2010.htm.

On August 3, 2010, the Disability Rights Network and Pennsylvania Department
of Public Welfare agreed to settle a lawsuit brought under the Americans
with Disabilities Act (ADA) and Rehabilitation Act. The complaint alleged
that 60 persons with intellectual disabilities were unlawfully housed
in Pennsylvania psychiatric hospitals. The victims were allegedly housed
in segregated units in violation of federal law and Disability Rights
Network brought a class action lawsuit on behalf of all the similarly situated
plaintiffs. The settlement agreement, which still must be approved by
a federal judge on the United States District Court for the Middle District
of Pennsylvania, requires the Department of Public Welfare to request funding
from the governor over the next three years to provide community mental health
services to all 60 plaintiffs. In addition, the agreement requires the defendant
to train staff at all state psychiatric hospitals in the appropriate care for
persons with mental illnesses and intellectual disabilities. It requires
that staff comply with a comprehensive protocol for treatment of persons with
disabilities. Disability Rights Network attorney Robert Meek praised the decision,
stating that the Network is "confident
that individuals with intellectual disabilities who are confined in state
psychiatric hospitals, now and in the future, will receive appropriate
mental health treatment and will be promptly discharged."

1. Lawsuit Filed to Raise Age for Special Education
in Hawaiian Schools

The Hawaii Disability Rights Center filed a class-action lawsuit on July
27, 2010, "seeking to extend special-education services in public schools
for students until they turn 22." Federal law allows for free education
for students with disabilities until age 22, and currently most states,
with Hawaii and Maine as the exceptions, have established cutoffs at 21 or
22 years-of-age. The suit was filed because the Disability Rights Center was
concerned that students were being deprived of an education and that the lower
age requirement, currently at 20 years of age, does not provide "equitable
educational opportunities to special-education students".

"Tobinworld, a 300-student campus for autistic and emotionally disturbed
youngsters" in Los Angeles, California, runs a Baskin-Robbins outlet that
is geared toward helping students at the school to learn, modify their
behavior, and "build business and social skills" in preparation for the work
world. The ice cream shop has been open since 1995 and employs 26 teenagers
who apply for the positions and interview, as practice for future employment.
The students are not paid for their work, since the store operates as a non-profit.
Students have used this experience to get jobs at other Baskin-Robbins stores
and various fast food outlets.

In July 2010, a report in the Proceedings of the National Academy of Sciences
demonstrated the effectiveness of a communication and mobility device
controlled by the user's combination of sniffing and exhaling through the nose. The
device can allow the user to control a computer by moving the cursor. This
provides a more successful means of communication for some people and the only
means of communication for others. For example, a woman who could not
move her limbs or control her blinking was able to generate "her first
post-stroke meaningful self-initiated communication that entailed a profound
personal message to her family." The device can also control a wheelchair
with certain combinations of sniffs and exhales, and in tests has been used
to "navigate a 150-foot obstacle course including sharp turns."

2. Locked E-Books Can Be 'Unlocked' to Work with Automated
Text-to-Speech

On July 26, 2010, the Library of Congress released its newest list of exceptions
to the Digital Millennium Copyright Act (DMCA). The DMCA makes it illegal
to remove the 'locks' (called Digital Rights Management) on electronic
media. However, every three years the Library of Congress is able to
grant exceptions to the DMCA. This time around, e-books that have been
locked by distributors so that they cannot be read by text-to-speech,
and are not available in an alternative accessible digital format, can be unlocked
without violating the DMCA. This topic has been controversial, as publishers
threatened to sue Amazon.com for distributing e-books capable of being read
by text-to-speech, resulting in a decrease in accessible e-books. Allowing
these e-books to be unlocked vindicates the right of everyone to enjoy the
publications they purchase.

This decision coincided with the unveiling of the Kindle 3 (officially called "Kindle
Wireless Reading Device, Free 3G + Wi-Fi"), which has "expanded
text to speech functions." The Kindle 3's menus can be navigated
using text to speech and allow the user to listen to "content listings
on the home screen, item descriptions, and all menu options." Despite
these accessibility improvements over previous versions of the Kindle,
the integrated web browser is not accessible, and there is not an audible
signal for battery strength. Amazon plans to begin shipping the Kindle
3 on August 27, 2010.

Full Story on DMCA exceptions: James H. Billington, Librarian of
Congress Announces DMCA Section 1201 Rules for Exemptions Regarding Circumvention
of Access-Control Technologies, Library of Congress, July 26, 2010, available
athttp://www.loc.gov/today/pr/2010/10-169.html

In July of 2010 the U.S. Centers for Medicare & Medicaid Services asked
the state of New York to explain their Medicaid reimbursement rates,
which is $4,556 per day for each resident -- the highest rates in the
nation. Currently, the federal government pays half the rate "as part of a
50-50 state-federal match." The Centers for Medicare & Medicaid Services
have asked New York State to provide a detailed description of how these rates
were developed, total Medicaid payments and operation costs for each institution,
documents showing that these rates do not exceed the upper pay limit,
or payment beyond a reasonable threshold, and whether the reimbursement money
was used for purposes other than funding state institutions. To these inquiries,
state officials noted that "the actual cost of care is only about one-third
the rate," meaning that "much of the $1.2 billion in federal matching
funds every year supports other state programs for the disabled."

Indiana's ACLU has filed suit in July of 2010 against the Family and
Social Services Administration (FSSA) on behalf of 26-year-old Michael
Dick. Michael, who has autism, is enrolled in Indiana's Developmental
Disabilities Waiver Program and receives food stamps each month from
the federal government. Michael's family claims, however, that when Michael
was allotted $1.25 more per day in food stamps, the state of Indiana deducted
the same amount from his living allowance, thus receiving no benefit from the
cost of living increase. "The
suit contends that federal law says food stamp benefits cannot be considered
income," and the ACLU is asking "a judge to stop counting food stamps
as income." The suit is also seeking class action status for the
suit to protect others in Indiana's Developmental Disabilities Waiver
Program who may have been affected by this as well.

1. Obama Executive Order to Increase Federal Employment
of Persons with Disabilities

In a July 2010 executive order, President Obama took a positive step in the
employment of persons with disabilities in federal government positions. The
order, passed on the 20th anniversary of the Americans with Disabilities Act
(ADA) seeks to employ 100,000 persons in the next five years. Under the
order, the Office of Personnel Management has sixty days to develop a strategy
to recruit and hire more workers with disabilities, in collaboration with the
EEOC, Department of Labor, and Office of Management and Budget. Federal
agencies will receive training and then be required to develop their own plans
for recruiting, hiring, and retaining persons with disabilities. At the
same time, the Department of Justice will pass new regulations that prohibit
discrimination against persons with disabilities by both governmental agencies
and private employers. This effort came just days after a report released
by the United States Equal Employment Opportunity Commission (EEOC) indicated
that persons with "targeted disabilities" (including blindness,
deafness, mental retardation, missing extremities and/or paralysis) constitute
less than one percent of the federal workforce.

Reports released in July 2010 indicated that persons with disabilities continue
to be disproportionately negatively affected by the recession. According
to the Department of Labor, the unemployment rate of persons with disabilities
has continued to increase as the employment rate of Americans generally has
stabilized and decreased over the past few months. The rate of unemployment
for persons with disabilities increased 2% from June to July and is currently
at 16.4%. In the same month, the rate of unemployment in the United States
increased only 0.1% to 9.5% from June.

The tough domestic economy has led many states to cut home-care services
for persons with disabilities and the elderly since the start of the
recession in 2009, according to the Center on Budget and Policy Priorities.
Since then, at least 25 states (including California and New York) and
the District of Columbia have made significant cuts in home-care programs,
like family caregiver stipends, housekeeping aides, and meal delivery
services, in order to attempt to balance state budgets. These in home-care
costs are in actuality normally cheaper per person than nursing homes or institutions.
For example, in Oregon, nursing homes cost $5,900 per month while community-based
services cost only $1,200 on average. The reason that home-care services
are being cut over the more expensive nursing home programs is that federal
Medicaid money is tied to state provision of nursing home care, and thus
state legislators have little political incentive to advocate for more home-care
services.

Robin Finegan was appointed as the Federal Emergency Management Agency (FEMA)
Region 8 Administrator on April 8, 2010. As Region 8 Administrator,
Ms. Finegan is responsible for emergency management in the following states:
Colorado, Montana, North Dakota, South Dakota, Utah and Wyoming. She has demonstrated
a commitment to integrated emergency management plans, making sure that
all persons are included. Toward this goal, she is planning on hiring "a
full-time Disability Integration Specialist," not to take on sole responsibility,
but to "to grow [the Region 8 team's] skills, awareness and personal
commitments."

In July 2010, Singapore's Ministry of National Development added various
barrier-free accessibility features to public facilities for persons with disabilities
and the elderly. Currently 98% of all "highly frequented" public
buildings, including hospitals and markets, have reached a "basic level" of
accessibility. Subsequently, the Building and Construction Authority
(BCA) has given owners of private sector buildings funds from a $40 million
Accessibility Fund to upgrade buildings for persons with disabilities and the
elderly. The Fund was initially designed for only the public sector, but
60 private building projects have already applied. Experts believe that
many key cities in Singapore will be almost entirely accessible by 2011
because of these changes.

Tata Motor will be supplying the Indian government with buses that are accessible
for Indians with disabilities attending the Commonwealth Games in October
2010. The vehicles will be equipped with low floors, at least one ramp, and
more space on the interior. This policy is one of many implemented in India's
capital -- which is hosting the games this year -- to comply
with international standards on accessibility.

The staff of the Disability Law & Policy e-Newsletter welcome suggestions
for announcements incorporating a focus on disability law or policy in forthcoming
issues. If you would like to bring calls for papers or proposals, conferences
or events, book announcements, new resources, or scholarship, fellowship or
internship competitions to our attention, please send them to dlpannounce@law.syr.edu.
Thank you.

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